93 Decision Citation: BVA 93-18771
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-50 348 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for osteoarthritis of the
knees with osteochondritis of the right patella, currently evaluated
as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J.T. Hutcheson, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals (hereinafter
"the Board") on appeal from a July 1990 rating decision of the San
Juan, Puerto Rico Regional Office (hereinafter "the RO"). The
veteran had active military service from November 1944 to March 1947
and from August 1950 to October 1951. The notice of disagreement was
received in August 1990. The statement of the case was issued in
December 1990. The substantive appeal was received in February 1991.
The veteran has been represented throughout this appeal by the
Disabled American Veterans. That organization submitted written
argument in February 1991. This case was received and docketed at
the Board in December 1991. A written presentation from the
accredited representative was submitted in January 1992. In March
1992, the Board remanded this case to the RO so that the veteran
could be afforded a Department of Veterans Affairs (hereinafter "VA")
orthopedic examination.
The requested examination was completed in June 1992. A supplemental
statement of the case was issued in September 1992. Written argument
was received in February 1993. This case was again received and
docketed at the Board in March 1993. A second written presentation
from the accredited representative was submitted in July 1993.
REMAND
In reviewing the record, the Board observes that the RO sent a
written notice to the veteran on March 1, 1993 which informed him
that his appeal was being returned to the Board and that his
records were therefore being transferred to the Board in
Washington, D.C. On June 29, 1993, the Board received a March
1993 statement from the veteran which was accompanied by an April
1993 examination report from Julio E. Lergier Saliva, M.D., a
March 1993 imaging report from Lidia I. Reyes, M.D., and a
photocopy of a September 1990 X-ray study from D. Fernandez, M.D.
A written waiver from the veteran of his procedural right to RO
review of the additional evidence has not been received.
Allegations of "good cause" have not been advanced under the
provisions of 38 C.F.R. § 20.1304(b) and (c) (1992).
Nevertheless, we conclude that this case must be referred to the
RO so that it may initially review the newly submitted
documentation and prepare a supplemental statement of the case as
the evidence is deemed highly pertinent to his claim, and an
appropriate "waiver" form did not accompany the newly submitted
evidence. In light of the VA's duty to assist the veteran in the
proper development of his claim as mandated by the provisions of
38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United
States Court of Veterans Appeals in Littke v. Derwinski,
1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the
following action:
The RO should review the additional evidence
submitted by the veteran. If the RO's decision
remains adverse to the veteran, he and his
accredited representative should be furnished with
a supplemental statement of the case.
When the requested action has been completed and if his claim
continues to be denied, the veteran should be afforded a
reasonable period of time in which to respond to the supplemental
statement of the case. Thereafter, subject to current appellate
procedures, this case should be returned to the Board for further
appellate consideration, if appropriate. The veteran need not
take any action unless he is further informed. The purpose of
this REMAND is to comply with due process considerations and no
inference should be drawn from it regarding the final disposition
of this claim.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
IRVIN H. PEISER, M.D.
JEFF MARTIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board is
appealable to the United States Court of Veterans Appeals. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).